Foreign Privacy Laws & Requests for Production

Last month, the Supreme Court of Nevada decided Las Vegas Sands v. Dist. Ct., 130 Nev. Adv. Op. 61. As discussed on this blog, the key question concerned information a company possessed that was located in a foreign country. Could a Nevada court could compel a party to produce documents located in that foreign country even through the foreign country’s law prohibited disclosing those documents?

A semi-related issue previously arose in Aparicio v. Baumann, 2014 U.S. Dist. LEXIS 7042, 2014 WL 223648 (D. Nev. Jan. 21, 2014). A Nevada resident sued a Canadian citizen arising from a car accident in Nevada. The Canadian reported the event to his Canadian insurance company who obtained a recorded statement. The Nevada plaintiff requested this statement, defendant refused. “Defendant argues that under British Columbia law, these statements are protected from discovery as work product because the doctrine or privilege is more expansive in Canada than in Nevada. Defendant seeks an order declaring that the British Columbia privilege protects these statements from discovery in this lawsuit.”

In British Columbia, the work-product privilege protects records that came into existence for the dominant purpose of preparing for, advising on, or conducting litigation that was under way or in reasonable prospect at the time the record was created. Hamalainen v. Sippola (1991) 62 B.C.L.R. 2d 254 (BCCA). Non-attorneys may claim this privilege, and Canadian courts have routinely [4] protected the type of communications at issue here from discovery. Id.; Romaniuk v. Prudential Insurance Co. of America, [2000] O.J. No. 1527, ¶ 20; Keirouz v. Co-Operators Insurance Assn. (1983), 39 C.P.C. 164, ¶¶ 5-7; [2002] B.C.I.P.C.D. No. 8.

Ultimately the court applied Canadian law to the recorded statement and protected it from production.